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Civil Petition for Special Leave to Appeal No. 129‑R of 1980, decided on 26th November, 19b0.

(On, appeal from the judgment and order of the Lahore High Court dated 24th May, 1980 in W. P. 59/R of 1976).

Constitution of

Pakistan (1973)‑

‑‑ Arts. 185(3) & 199 read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10 & Sched.‑Transfer of evacuee property‑Property in dispute already transferred and P. T. D. issued in favour of transferee‑Respondent, after lapse of about 15 years since filing his KNCH form, applying to Settlement Authorities that his form was still pending but application was dismissed‑High Court, on writ petition, holding respondent entitled to portion of property under his occupation‑‑Leave to appeal‑Granted to examine contention whether High Court, in accepting writ petition, bad erred in following Supreme Court's Judgment in Ali Muhammad's case P L D 1976 S C 37 instead of that in Inyatullah's case 1979 S C M R 487.

Ali Muhammad v. Hussain Bakhsh P L D 1976 S C 37 and Inayatullah v. Muhammad Yousuf 1979 S C M R 487 ref.

Samad Mahmaod, Advocate and Khan Imtiaz Muhammad Khan, Advocate -on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing

: 26th November, 1980.

‑This petition is time‑barred by four days. The delay is condoned subject to all just exceptions.

The dispute in this petition for leave relates to the property in Rawalpindi bearing Nos. 933, 933‑A and 934. But, although the property bears three numbers, learned counsel stated that the concurrent finding of the Settlement Department was that it was one house. One Ahmed Hussain (the fourth respondent), one Sher Alam and Lai Muhammad (the third respondent) to whom we will refer as the respondent had applied for the transfer of the property, and it is relevant to note that Lai Muhammad and Sher Alam had filed K.N.C.H. form. And Sher Alam had only applied for the portion of the property No. 933‑A. The Deputy Settlement Commissioner rejected Sher Alam's claim and on 8‑9‑1960, be allowed Ahmad Hussain's claim for the transfer of the entire property and the respondent obtained the P. T. O. and the P. T. D. for it in due course. On the other hand, although Lai Muhammad had filed a K.N.C.H. form, he did not take any steps to enquire what happened about his application although there was protracted litigation in the Settlement Department between 1960 and 1968 between Sher Alam and Ahmad Hussain. This litigation terminated in Ahmad Hussain's favour in 1968. And, sometime in 1968 Ahmad Hussain sold the house by a registered sale deed to the petitioners. Then suddenly, nearly fifteen years after he had filed his K.N.C.H. form Lai Muhammad applied to the Deputy Settlement Commissioner that his K.N.C.H. form was still pending. It is not surprising that the Deputy Settlement Commissioner dismissed this application, there‑ fore, in the events that happened. Lai Muhammad filed a writ petition in the Lahore High Court against the Deputy Settlement Commissioner's order o 15.1‑1975. This writ petition was contested by the petitioner, but it was allowed by a learned Judge of the High Court on the ground that Lai Muhammad was entitled to the property on his K.N.C.H. form as he was living in a portion of it. The learned Judge was also of the view that nothing 'turned on the fact that Lai Muhammad had not taken any steps to prosecute his claim in the Settlement Department for nearly fifteen years. Therefore, as the learned Judge allowed Lai Muhammad's writ petition, and cancelled the transfer in favour of Ahmad Hussain the petitioner has filed this petition for leave.

In allowing Lai Muhammad's writ petition, the learned Judge relied on a judgment of this Court in All Muhammad v. Hussain Bakhsh (P L D 1976 S C 37), but as Lai Muhammad had slept over his rights for nearly fifteen years and as the petitioner claims to be a bona fide transferee for value without notice, learned counsel submitted that the High Court had erred in following this Court's judgment in Ali Muhammad's case and that on the contrary the High Court should have followed this Court's judgment to which one of us (M. A. Zullah, J.) was a party in Inayatullah v. Muhammad Youaf (1979 S C M R 487).

This submission requires examination. Accordingly, we grant leave as prayed. Security in the sum of Rs. 2,500. The appeal will be made ready on the present record with liberty to the parties to file additional documents.

S. Q.

Leave granted.

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